Business Solutions Alert: Homeowners' Complaint for Breach of Loan Modification Agreement Can Proceed Past Pleading Stage
October 08, 2014 —
Krsto Mijanovic, Annette Mijanovic, Blythe Golay - Haight Brown & Bonesteel LLPIn Fleet v. Bank of America, N.A. (No. G050049, published 9/23/14, filed 8/25/14), a California Court of Appeal held that the trial court erred in sustaining the demurrer of a lender, where the homeowners had adequately alleged causes of action for breach of contract, fraud, and promissory estoppel. The homeowners alleged that they made timely payments during the trial period plan under the modification program, but before the last payment was due, the lender foreclosed and their house was sold.
The homeowners had applied for a loan modification and were approved for a trial period plan under the modification program. They were required to make three monthly payments and verify financial hardship to permanently modify their loan. The homeowners made two payments and were told that foreclosure proceedings had been suspended. But before the third payment was due, the lender foreclosed. The trial court found that the trial period plan was not a binding loan modification agreement, so the homeowners had no right to any guaranteed loan modification.
Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys
Krsto Mijanovic,
Annette Mijanovic and
Blythe Golay
Mr. Mijanovic may be contacted at kmijanovic@hbblaw.com
Ms. Mijanovic may be contacted at amijanovic@hbblaw.com
Ms. Golay may be contacted at bgolay@hbblaw.com
Read the court decisionRead the full story...Reprinted courtesy of
Los Angeles Warehousing Mecca Halts Expansion Just as Needs Soar
September 05, 2022 —
Ngai Yeung & Augusta Saraiva - BloombergCommunities in the Inland Empire, the US’s logistics mecca east of Los Angeles, are suspending new warehousing projects to examine the impact from decades of pollution -- putting the industry under pressure when it’s needed most.
This week, the city council for Pomona is set to vote on extending a temporary halt on industrial developments to study the environmental impact, while the nearby city of Norco will decide whether to establish a 45-day moratorium. The actions follow similar freezes by a handful of Southern California cities like Riverside, Colton, Chino and Redlands over the past several years.
Meanwhile, a state-level bill -- which is a long-shot to pass in the legislature but gives a reading of the mood -- proposes banning large industrial construction within 1,000 feet of non-industrial areas such as schools, homes and playgrounds in Riverside and San Bernardino counties, an area that spans 27,000 square miles.
Reprinted courtesy of
Ngai Yeung, Bloomberg and
Augusta Saraiva, Bloomberg Read the court decisionRead the full story...Reprinted courtesy of
Insured's Motion for Reconsideration on Protecting the Integrity of Referral Sources under Florida Statute s. 542.335
September 28, 2017 —
David Adelstein - Florida Construction Legal UpdatesReferral sources are generally important for all businesses. Due to their importance, certain businesses require employees to execute non-solicitation or even non-compete agreements to protect the integrity of their referral sources. Now, whether referral sources for a particular business constitutes a legitimate business interest (very important words) is a question where the context must be examined. Nonetheless, in a case that is certainly important for businesses, the Florida Supreme Court held that referral sources can serve as a legitimate business interest. While this case dealt with home health care companies, the rationale would be the same no matter the business, provided that referral sources are contextually a legitimate business interest for that business.
Read the court decisionRead the full story...Reprinted courtesy of
David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
dadelstein@gmail.com
“I Didn’t Sign That!” – Applicability of Waivers of Subrogation to Non-Signatory Third Parties
September 30, 2019 —
Rahul Gogineni - The Subrogation StrategistIn Gables Construction v. Red Coats, 2019 Md. App. LEXIS 419, Maryland’s Court of Special Appeals considered whether a contractual waiver of subrogation in the prime contract for a construction project barred a third party – a fire watch vendor hired to guard the worksite – from pursuing a contribution claim against the general contractor. The court concluded that the general contractor could not rely on the waiver of subrogation clause to defeat the contribution claim of the vendor, who was not a party to the prime contract. As noted by the court, holding that a waiver of subrogation clause bars the contribution claims of an entity that was not a party to the contract would violate the intent of the Maryland Uniform Contribution Among Tortfeasors Act (UCATA).
When dealing with claims involving construction projects, there may exist multiple contracts between various parties that contain waivers of subrogation. The enforceability of such waivers can be limited by several factors, including the jurisdiction of the loss, the language of the waiver and the parties to the contract.
In Gables Construction, Upper Rock, Inc. (Upper Rock), the owner, contracted with a general contractor, Gables Construction (GCI) (hereinafter referred to as the “prime contract”), to construct an apartment complex. After someone stole a bobcat tractor from the jobsite, Gables Residential Services Incorporated (GRSI), GCI’s parent company, signed a vendor services agreement (VSA) with Red Coats to provide a fire watch and other security services for the project.
Read the court decisionRead the full story...Reprinted courtesy of
Rahul Gogineni, White and Williams LLPMr. Gogineni may be contacted at
goginenir@whiteandwilliams.com
The Connecticut Appellate Court Decides That Construction Contractor Was Not Obligated To Continue Accelerated Schedule to Mitigate Its Damages Following Late Delivery of Materials by Supplier
April 11, 2022 —
Robert M. Barrack - Gordon & ReesIn United Concrete Prods. v. NJR Constr., LLC, 207 Conn. App. 551, 263 A.3d 823 (2021), the Connecticut Appellate Court has issued a decision that should be of interest to the Connecticut construction industry and the construction bar. The lawsuit arose out of the late delivery of materials on a construction project, which is a frequent problem on construction projects. In United Concrete Products, the defendant general contractor, NJR Construction, LLC (“NJR”) was retained by the State of Connecticut Department of Transportation (“DOT”) to replace a bridge over the Hockanum River (“Project”). Id. at 555-58 (2021). The Prime Contract provided that NJR with an eight-week time-frame to perform the work, at which time the road would be closed to traffic. Id. The Prime Contract also provided for a bonus of $3,000 for each day the road was opened to traffic prior to the eight week deadline of August 8, 2016, and for liquidated damages of $3,000 for each day the road remained closed beyond the deadline. Id.
NJR subsequently entered into a purchase order (“Subcontract”) with the plaintiff, United Concrete Products, Inc. (“United”), whereby United agreed to provide certain concrete components for the Project, including ten pre-stressed concrete beams. Id. The Subcontract required that United deliver the concrete beams by June 7, 2016, but, NJR did not actually schedule the delivery until June 29, 2016. Id. Nevertheless, even with that schedule NJR could have reopened the road by July 19, 2016, which would have allowed it to receive the full $60,000 incentive bonus. However, United did not deliver the concrete beams until July 26, 2016, which caused NJR to lose the incentive bonus, be assessed liquidated damages by the DOT, and to incur additional delay damages. Id. After deducting the amount of $179,500 in damages that it incurred due to United’s late delivery of the beams, NJR paid United the balance of $66,074.75. Id.
Read the court decisionRead the full story...Reprinted courtesy of
Robert M. Barrack, Gordon Rees Scully Mansukhani, LLPMr. Barrack may be contacted at
rbarrack@grsm.com
Hawaii Federal District Court Denies Motion for Remand
December 21, 2016 —
Tred R. Eyerly – Insurance Law HawaiiThe federal district court refused to remand the insureds' case after the insurer removed from state court. Maui Land & Pineapple Co. v. Liberty Ins. Underwriters, 2016 U.S. Dist. LEXIS 15681 (D. Haw. Nov. 10, 2016).
The underlying case was filed in state court on Maui. The underlying plaintiffs were condominium owners who brought claims against the insured, Maui Land and Pineapple Co., Inc. (MLP), and other defendants allegedly involved in the development of the project. Ryan Churchill, one of the named defendants, served as president of MLP and was on the board of the project's Association of Apartment Owners (AOAO). The underlying plaintiffs asserted claims for: breach of fiduciary duty; seeking access to books and records of the AOAO; and for injunctive/declaratory relief against MLP, Mr. Churchill, and all other defendants.
Read the court decisionRead the full story...Reprinted courtesy of
Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
CLB Recommends Extensive Hawaii Contractor License Changes
January 27, 2014 —
Beverley BevenFlorez-CDJ STAFFIn 2013, the Hawaii senate passed a resolution, which asked the Contractors License Board to assess “each of the contractor licensing classifications under chapter 444, Hawaii Revised Statutes, and chapter 77, Hawaii Administrative Rules, and prepare a report that evaluates each classification,” according to Anna Oshiro’s blog, Hawaii Construction Law. The “board completed its task” and “recommends wholesale changes to the scope of work to be performed by licensed contractors in the State of Hawaii.” The report has been filed with the Legislative Reference Bureau.
Read the court decisionRead the full story...Reprinted courtesy of
Under Colorado House Bill 17-1279, HOA Boards Now Must Get Members’ Informed Consent Before Bringing A Construction Defect Action
April 11, 2018 —
Luke Mecklenburg – Snell & Wilmer Real Estate Litigation Blog Last year, I wrote
a post calling attention to stalled efforts in the Colorado legislature to pass meaningful construction defect reform. Shortly thereafter, the legislature got it done in the form of House Bill 17-1279. This bill creates an important pre-litigation notice-and-approval process whenever an HOA initiates a construction defect action in its own name or on behalf of two or more of its members.
Before May 2017, the pre-litigation requirements that an HOA had to fulfill before bringing a construction defect claim under the Colorado Construction Defect Action Reform Act (“CDARA”) were generally minor. For example, while many declarations required majority approval from the community prior to initiation of claims, in practice, what the industry was seeing is that some HOAs were making it so that only a majority of the HOA Board had to approve bringing the claim, rather than the majority of interested unit owners. It was also common that, even where the majority of owners were involved, they were often voting in favor of filing a lawsuit or arbitration without fully understanding the risks and costs. This practice presented a risk to developers—it is easier to get approval from a small group than from a larger group, and it is easier to get approval when the voting owners do not fully appreciate the risks and costs inherent in filing a claim.
Colorado House Bill 17-1279, which was signed into law by Governor Hickenlooper in May 2017 and is codified at C.R.S. § 38-33.3-303.5, lessens these risks by amending the Colorado Common Interest Ownership Act (“CCIOA”) to add certain pre-litigation requirements. Section 38-33.3-303.5 applies any time an HOA institutes a construction defect action its own name on behalf of itself or two or more unit owners on matters affecting the common interest community. C.R.S. §§ 38-33.3-302(1)(d), -303.5(1)(a).
Read the court decisionRead the full story...Reprinted courtesy of
Luke Mecklenburg, Snell & WilmerMr. Mecklenburg may be contacted at
lmecklenburg@swlaw.com
